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[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12437-12444]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4962]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules 
and Regulations

[[Page 12437]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2007-0117]
RIN 0579-AC90

Importation of Wooden Handicrafts From China

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations to provide for the importation 
of wooden handicrafts from China under certain conditions. From 2002 to 
2005, the Animal and Plant Health Inspection Service (APHIS) issued 
more than 300 emergency action notices and conducted national recalls 
to remove infested Chinese-origin wooden handicrafts from the U.S. 
marketplace. In 2005, APHIS suspended the importation of certain wooden 
handicrafts until we could more fully analyze the pest risks associated 
with those articles. Based on evidence from a pest risk analysis, APHIS 
has determined that these articles can be safely imported from China, 
provided certain conditions are met. This action allows for trade in 
Chinese wooden handicrafts to resume while continuing to protect the 
United States against the introduction of plant pests.

DATES: Effective Date: April 30, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. John Tyrone Jones, Trade Director 
(Forestry Products), Phytosanitary Issues Management, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1231; (301) 734-8860.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart-Logs, Lumber, and Other Unmanufactured 
Wood Articles'' (7 CFR 319.40-1 through 319.40-11, referred to below as 
the regulations) govern the importation of various logs, lumber, and 
other unmanufactured wood products into the United States. Under Sec.  
319.40-9 of the regulations, all regulated articles must be inspected 
at the port of first arrival. If a regulated article shows any signs of 
pest infestation, the inspector may require treatment, if an approved 
treatment exists, or refuse entry of the consignment.
    Prior to 2005, wood decorative items and craft products (wooden 
handicrafts) from China had been entering the United States in 
increasing quantities. However, between 2002 and 2005, the Animal and 
Plant Health Inspection Service (APHIS) issued more than 300 emergency 
action notices for wooden handicrafts from China. Moreover, in 2004, 
the United States Department of Agriculture (USDA) intercepted live 
wood-boring beetles, Callidiellum villosulum (Coleoptera: 
Cerambycidae), on articles manufactured from wood components and 
imported from China. Subsequent to these interceptions, shipments of 
the articles were recalled from retail stores. Based on these pest 
interceptions, in 2005, we suspended the importation of most wooden 
handicrafts (i.e., all handicrafts made from wooden logs, limbs, 
branches, or twigs greater than 1 centimeter in diameter) from China 
until a more thorough evaluation of the pest risks associated with 
those articles could be conducted.
    APHIS prepared a pest risk assessment, titled ``Pests and 
mitigations for manufactured wood d[eacute]cor and craft products from 
China for importation into the United States,'' to evaluate the risks 
associated with the importation of such wooden handicrafts into the 
United States from China. We also prepared a risk management document, 
titled ``Pests and mitigations for manufactured wood d[eacute]cor and 
craft products from China for importation into the United States,'' to 
determine mitigations necessary to prevent pest entry, introduction, or 
establishment associated with imported wooden handicrafts from China. 
Based on the conclusions in the pest risk assessment and the 
accompanying risk management document, we determined that wooden 
handicrafts could be imported from China provided they met certain 
requirements for treatment, issuance of a phytosanitary certificate, 
inspection, and box identification.
    Accordingly, on April 9, 2009, we published in the Federal Register 
(74 FR 16146-16151, Docket No. APHIS-2007-0117) a proposal \1\ to 
authorize the importation of wooden handicrafts from China under those 
conditions. We solicited comments concerning the proposed rule for 60 
days ending June 8, 2009. We received eight comments by that date. They 
were from the national plant protection organization (NPPO) of China, a 
State department of agriculture, manufacturers of Chinese wooden 
handicrafts, a public advocacy organization, and private citizens.
---------------------------------------------------------------------------

    \1\ To view the proposed rule, supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2007-0117.
---------------------------------------------------------------------------

    One of the commenters urged us to finalize the proposed rule 
without change. The remaining commenters provided comments on the rule 
in general, and requested modifications to certain of its provisions.
    Based on one of the comments received on the proposed rule, on 
September 23, 2010, we published in the Federal Register a supplemental 
proposal (75 FR 57864-57866, Docket No. APHIS-2007-0117) to modify the 
heat treatment requirements of the proposed rule. We solicited comments 
concerning the supplemental proposal for 60 days ending November 22, 
2010. We received six comments by that date. They were from State 
Departments of Agriculture, a manufacturer of wooden picture frames, 
and two private citizens.
    The comments on both the proposed rule and the supplemental 
proposal are discussed below by topic.

General Comments on the Proposed Rule

    One commenter stated that the measures that we proposed for Chinese 
wooden handicrafts were not the least restrictive necessary to mitigate 
the plant pest risk associated with such articles. As a result, the 
commenter stated that the proposed rule violated World Trade 
Organization principles.
    The provisions of the proposed rule reflect the substantive plant 
pest risk that wooden handicrafts from China

[[Page 12438]]

have historically presented, our analysis of the quarantine pests 
currently known to exist in China, and our determination regarding the 
likelihood that the importation of wooden handicrafts from China will 
present a pathway for introducing or disseminating these pests within 
the United States. Accordingly, the provisions represent the least 
restrictive measures that we considered possible at the time that we 
initiated rulemaking for the proposed rule.
    That said, in response to comments received on the proposed rule, 
we issued the supplemental proposal mentioned above to propose to 
modify the heat treatment requirements of the proposed rule. We have 
also determined that one other provision of the proposed rule, which 
would have required the handicrafts to be accompanied by a 
phytosanitary certificate issued by the NPPO of China and containing an 
additional declaration stating that the handicrafts were treated in 
accordance with the regulations and found free from quarantine pests, 
is unnecessary. We discuss this change in greater detail later in this 
document, in the section titled ``Comments Regarding Phytosanitary 
Certificates.''
    One commenter stated that it appeared that the greatest remedial 
measure APHIS would take in response to violations of the proposed rule 
would be to prohibit the importation of wooden handicrafts from certain 
manufacturers into the United States. The commenter expressed concern 
that this would not be a sufficient incentive for manufacturers to 
adhere to the provisions of the proposed rule, given that these 
manufacturers currently have little to no access to the U.S. market.
    Under the regulations, all wooden handicrafts from China would have 
to be accompanied by a permit stating the intended treatment for the 
articles, as well as an importer document or certificate stating that 
the intended treatment has in fact been applied to the articles. In 
response to inaccuracies on a permit, importer document, or 
certificate, APHIS may determine not to accept any further certificates 
from China, or may not allow the importation of any further wooden 
handicrafts or regulated articles from China until corrective action 
acceptable to APHIS establishes that certificates issued in China are 
accurate. We consider the possibility of such general prohibitions a 
sufficient incentive for Chinese manufacturers to adhere to the 
provisions of this rule.
    We discuss these possible remedial measures at greater length later 
in this document, in the section titled ``Comments Regarding 
Phytosanitary Certificates.''
    One commenter suggested that the scope of the final rule be 
expanded to include wooden handicrafts from other countries. The 
commenter asserted that many countries have plant pests that are 
identical or similar to those found in China.
    To date, only wooden handicrafts from China have been determined to 
be infested with quarantine pests as a result of an inspection at a 
port of first arrival. If, in the future, an inspector discovers 
quarantine pests in or on handicrafts from another country, he or she 
will prohibit their entry into the United States subject to remedial 
measures. As a result of such a detection, APHIS may prohibit further 
importation of all such handicrafts from that country, pending 
completion of a pest risk analysis. If this analysis concludes that 
subjecting the handicrafts to the same mitigation measures that we are 
requiring for wooden handicrafts from China will adequately mitigate 
the risk associated with their importation, we will initiate rulemaking 
to amend the regulations accordingly.
    One commenter stated that we should take into consideration the 
potential environmental impact associated with the importation of 
wooden handicrafts from China.
    We evaluated these possible impacts in the environmental assessment 
that accompanied the proposed rule. Based on the comments we received, 
we are issuing a finding of no significant impact along with this final 
rule.
    Finally, the NPPO of China requested that we delay the effective 
date of this rule for one year in order to give the NPPO sufficient 
time to establish internal policies and procedures to facilitate 
manufacturers' compliance with the rule's provisions. The NPPO also 
requested that, during this delay, we authorize the importation of 
wooden handicrafts from China under the conditions for importation that 
were in effect prior to 2005.
    Because of the significant plant pest risk associated with the 
importation of wooden handicrafts from China, as evidenced by the more 
than 300 emergency action notices we issued for such handicrafts 
between 2002 and 2005, we cannot authorize the importation of wooden 
handicrafts from China under conditions other than those of this final 
rule, and, accordingly, cannot grant such a delayed implementation 
date.

Comments Regarding Proposed Definitions

    Section 319.40-1 contains definitions for certain terms used in the 
regulations pertaining to logs, lumber, and other wood articles. We 
proposed to add a new definition to this section for wooden handicraft. 
We proposed to define a wooden handicraft as a commodity class of 
regulated articles derived or made from natural components of wood, 
twigs, and vines, and including bamboo poles and garden stakes. The 
proposed definition provided that handicrafts included the following 
products where wood is present: Carvings, baskets, boxes, bird houses, 
garden and lawn/patio furniture (rustic), potpourri, artificial trees 
(typically artificial ficus trees), trellis towers, garden fencing and 
edging, and other items composed of wood.
    We also proposed to revise the definition of regulated article so 
that articles that contain parts that are either unprocessed or have 
received only primary processing and are not feasibly separable from 
the other parts of the articles would be considered regulated articles 
for the purposes of the regulations. We stated that wooden handicrafts, 
as we proposed to define them, would always contain such unprocessed or 
partially processed parts.
    It was within the framework of these definitions that we proposed 
to add a new paragraph (o) to Sec.  319.40-5, which contains 
importation requirements for specified regulated articles, to authorize 
the importation of wooden handicrafts from China.
    One commenter stated that the definition of wooden handicraft was 
too broad, and would subject wooden handicrafts from China that are 
currently authorized for importation into the United States to the 
provisions of the proposed rule. The commenter suggested that we modify 
the proposed definition to include only those wooden handicrafts 
currently prohibited importation into the United States from China, 
that is, handicrafts more than 1 centimeter in diameter.
    We agree with the commenter that the proposed rule would have 
regulated handicrafts 1 centimeter or less in diameter, and that such 
handicrafts are currently authorized for importation into the United 
States.
    However, we do not consider it necessary to revise our definition 
of wooden handicraft in the manner requested by the commenter. The 
definitions in Sec.  319.40-1 are intended to have general 
applicability within the subpart, and it is possible that we will

[[Page 12439]]

initiate rulemaking at some future point to restrict the importation of 
wooden handicrafts from another country in which quarantine pests are 
determined to infest handicrafts less than 1 centimeter in diameter. 
Moreover, if we revised the definition of wooden handicraft to state 
that it only includes items more than 1 centimeter in diameter, this 
could be construed to exempt handicrafts less than 1 centimeter in 
diameter from the definition of regulated article. This is not the 
case; although such handicrafts are exempt from the requirements of 
Sec.  319.40-5(o), they are regulated articles, and thus are subject to 
all other applicable provisions of the subpart.
    Accordingly, we have instead decided to modify proposed Sec.  
319.40-5(o) to state that the provisions of that paragraph apply only 
to wooden handicrafts from China that are more than 1 centimeter in 
diameter, and that articles less than 1 centimeter in diameter, 
although exempt from the requirements of Sec.  319.40-5(o), are still 
subject to all other applicable provisions of 7 CFR chapter III.
    Two commenters stated that they manufactured wooden handicrafts 
that fell within the definition of wooden handicrafts, but not the 
definition of regulated article. The commenters stated that these 
articles had wooden parts, but that the parts were fully, rather than 
partially, processed. Both commenters asked if their products would be 
regulated under the provisions of the proposed rule.
    Wooden handicrafts are a class of regulated articles. Accordingly, 
we will consider an article to be a wooden handicraft only if it also 
meets the definition of regulated article. Thus, the commenters' 
products would be exempt from the provisions of this rule.
    The same commenters stated that they manufactured handicrafts that 
fell within the scope of both wooden handicraft and regulated article, 
but that these handicrafts presented a minimal pest risk and should 
therefore be exempt from the requirements of Sec.  319.40-5(o).
    As we pointed out in our proposed rule, Chinese wooden handicrafts 
have historically been a pathway for the introduction of quarantine 
pests into the United States. Based on this plant pest risk and the 
findings of our pest risk assessment, it would be not be appropriate to 
exempt certain wooden handicrafts from China from the provisions of the 
regulations. Indeed, one of these commenters implied that quarantine 
pests are occasionally discovered on wooden handicrafts at its 
production facility.

Comments Regarding Heat Treatment

    In proposed Sec.  319.40-5(o)(1)(i), we stated that wooden 
handicrafts would have to be treated with heat treatment in accordance 
with Sec.  319.40-7(c) or heat treatment with moisture reduction in 
accordance with Sec.  319.40-7(d). At the time the proposed rule was 
published, Sec.  319.40-7(c) provided that heat treatment may take 
place only at a facility where APHIS or an inspector authorized by the 
Administrator and the national government of the country in which the 
facility is located has inspected the facility and determined that its 
operation complies with the treatment specifications as follows: Heat 
treatment procedures may employ steam, hot water, kilns, exposure to 
microwave energy, or any other method (e.g., the hot water and steam 
techniques used in veneer production) that raises the temperature of 
the center of each treated regulated article to at least 71.1 [deg]C 
(160[emsp14][deg]F) and maintains the regulated article at that center 
temperature for at least 75 minutes.
    Similarly, at the time our proposed rule was published, Sec.  
319.40-7(d) provided that heat treatment with moisture reduction may 
include kiln drying conducted in accordance with the schedules 
prescribed for the regulated article in the Dry Kiln Operator's Manual, 
Agriculture Handbook 188, which we have incorporated by reference at 
Sec.  300.2, or dry heat, exposure to microwave energy, or any other 
method that raises the temperature of the center of each treated 
regulated article to at least 71.1 [deg]C (160 [deg]F), maintains the 
regulated articles at that center temperature for at least 75 minutes, 
and reduces the moisture content of the regulated article to 20 percent 
or less as measured by an electrical conductivity meter.
    A commenter suggested that APHIS authorize the NPPO of China to 
approve heat treatment facilities.
    Under Sec.  305.8, which contains general heat treatment 
requirements for 7 CFR chapter III, all heat treatment facilities must 
be certified by APHIS and facilities located outside the United States 
must operate in accordance with workplan signed by a representative of 
the heat treatment facilities located outside the United States, the 
NPPO of the country of origin, and APHIS. The workplan must contain 
requirements for equipment, temperature, water quality, circulation, 
and other measures to ensure that heat treatments are administered 
properly. Workplans for facilities outside the United States must 
include trust fund agreement information regarding payment of the 
salaries and expenses of APHIS employees on site. Workplans must also 
allow officials of the NPPO and APHIS to inspect the facility to 
monitor compliance with APHIS regulations. Given these requirements, 
the NPPO of China will play a significant role, along with APHIS, in 
the process of certifying heat treatment facilities.
    Two commenters stated that the moisture of a regulated article can 
be reduced to 20 percent or less by a number of means other than heat 
treatment with moisture reduction, such as drying the article for 24 
hours. The commenters suggested that we modify the regulations to 
incorporate these alternate moisture reduction techniques.
    Moisture reduction, in and of itself, is not an adequate mitigation 
measure for wooden articles. It is efficacious only in conjunction with 
heat treatment.
    One commenter asked whether handicrafts made entirely from lumber 
that has been treated with heat treatment prior to processing would 
have to be treated a second time, while another stated that handicrafts 
that have been treated with heat treatment as part of their partial 
processing should not have to be treated a second time prior to 
exportation.
    Provided that the lumber or handicrafts have been treated in an 
approved facility according to an authorized treatment schedule and 
provided that they have been stored, handled, and safeguarded since 
treatment in a manner that excludes infestation of the lumber or 
handicrafts by plant pests, the handicrafts would not have to be 
treated a second time.
    Finally, a commenter pointed out that the proposed rule would 
require most wooden handicrafts to be treated at a significantly higher 
temperature and for a longer duration than the temperature and duration 
recommended by International Standard for Phytosanitary Measures (ISPM) 
15, which recommends that wood packaging material (WPM) be treated 
according to a heat treatment schedule that raises the temperature at 
the center of the WPM to at least 56 [deg]C and maintains the WPM at 
that center temperature for at least 30 minutes.\2\ The commenter 
suggested that we should modify the proposed heat treatment requirement 
for Chinese wooden handicrafts to make it consistent with ISPM 15.
---------------------------------------------------------------------------

    \2\ To view ISPM 15, go to: https://www.ippc.int/index.php?id=13399&tx_publication_pi1*showUid]=133703&frompage=13399&type=publication&subtype=&L=0#item
.
---------------------------------------------------------------------------

    In response to this comment, we reviewed the relevant scientific 
literature, and determined that

[[Page 12440]]

treatment consistent with ISPM 15, although effective in neutralizing 
most of the pests of greatest concern identified in the pest risk 
assessment as likely to follow the pathway on imported wooden 
handicrafts from China, would not be effective for emerald ash borer 
(EAB). Because EAB is an extremely destructive pest, we determined that 
treatment consistent with ISPM 15 would not adequately mitigate the 
pest risk.
    However, an article by Scott Myers et al. titled ``Evaluation of 
Heat Treatment Schedules for Emerald Ash Borer (Coloeptera: 
Buprestidae)'' in the December 2009 issue of Journal of Economic 
Entomology \3\ led us to reevaluate the treatment schedule in the 
proposed rule. Myers et al. documented four independent experiments to 
determine the minimum core temperature and time duration necessary to 
neutralize EAB on firewood via heat treatment or heat treatment with 
moisture reduction. As part of the experiments, researchers obtained 
ash wood from trees showing visible signs of EAB infestation, split the 
wood, and stored it. They then heat-treated the articles in laboratory 
facilities (a drying oven and an environmental chamber) at temperatures 
and durations ranging from 45 to 65 [deg]C and 15 to 60 minutes, 
respectively. Myers et al. found that the experiments suggested that 
``a minimum heat treatment of 60 [deg]C for 60 minutes * * * would 
provide >99.9% control (for EAB) based on probit estimates.''
---------------------------------------------------------------------------

    \3\ Myers, Scott, Ivich Fraser, and Victor Mastro, ``Evaluation 
of Heat Treatment Schedules for Emerald Ash Borer (Coloeptera: 
Buprestidae)'', Journal of Economic Entomology, 102:6 (December 
2009), 2048-2055. Referred to below as ``Myers et al.''
---------------------------------------------------------------------------

    Since firewood presents similar or greater plant pest risks than 
wooden handicrafts, we determined that the Myers et al. findings were 
applicable to wooden handicrafts from China.
    This determination led us to issue the September 2010 supplemental 
proposal. In it, we proposed to modify proposed Sec.  319.40-5(o)(1)(i) 
to state that wooden handicrafts would have to be treated as specified 
in the PPQ Treatment Manual \4\ in accordance with 7 CFR part 305, and 
to add heat treatment that raises the core temperature of handicrafts 
to 60 [deg]C for a duration of 60 minutes to the PPQ Treatment Manual 
as an approved treatment schedule for wooden handicrafts from China.
---------------------------------------------------------------------------

    \4\ The Treatment Manual is available on the Internet, at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf.
---------------------------------------------------------------------------

    One commenter agreed that Myers et al. did in fact provide a basis 
for such a modification.
    In contrast, another commenter raised numerous concerns regarding 
the appropriateness of our use of Myers et al. as the basis for 
modifying our proposed heat treatment requirements for wooden 
handicrafts from China. The commenter pointed out that Myers et al. 
only sought to determine the minimum heat treatment necessary to 
neutralize EAB. The commenter stated that, because of its morphology 
and burrowing patterns, EAB is more susceptible to heat treatment than 
other plant pests in the families Cerambycidae and Siricidae identified 
in the pest risk assessment as possibly following the pathway on wooden 
handicrafts from China.
    The commenter provided no information in support of this assertion. 
Moreover, as documented in the treatment evaluation document that 
accompanied the supplemental proposal, all scientific evidence 
available to APHIS suggests that heat treatment consistent with ISPM 
15--that is, treatment at a lower temperature and duration than that 
specified in our supplemental proposal--will kill all other pests 
identified in the pest risk assessment as likely to follow the pathway 
on wooden handicrafts from China.
    The commenter pointed out that the kilns used by Myers et al. were 
relatively small, as was the volume of firewood heat-treated in the 
experiments. The commenter then referred to an article in the October 
2010 issue of the Journal of Economic Entomology by P. Charles Goebel 
et al.\5\ as providing evidence that larger volumes of wood products in 
larger kilns tend to heat more unevenly than smaller products in 
smaller kilns, and stated that Chinese wooden handicrafts would likely 
be treated en masse in large-scale kilns. For this reason, the 
commenter stated that the treatment methods and apparati employed by 
Myers et al. fundamentally differed from those that manufacturers of 
Chinese handicrafts are likely to employ, and that the results of Myers 
et al. could therefore not be considered a reliable indicator of the 
efficacy of heat treatment of Chinese handicrafts under the provisions 
of the supplemental proposal.
---------------------------------------------------------------------------

    \5\ Goebel, P. Charles, Matthew Bumgardner, Daniel Herms, and 
Andrew Sabula, ``Failure to Phytosanitize Ash Firewood Infested with 
Emerald Ash Borer in a Small Dry Kiln Using ISPM 15 Standards,'' 
Journal of Economic Entomology, 103:3 (October 2010), 597-602. 
Available on the Internet at http://www.nrs.fs.fed.us/pubs/jrnl/2010/nrs_2010_goebel_001.pdf. Referred to below as ``Goebel et 
al.''
---------------------------------------------------------------------------

    Our supplemental proposal to modify the heat treatment requirements 
was based not on an assumption that Chinese manufacturers will 
reduplicate the methods of Myers et al. but on the conclusion of Myers 
et al. that heat treatment that ``achieves a temperature of 60 [deg]C 
for 60 minutes * * * would provide >99.9% control (for EAB),'' and on 
our evaluation of the accuracy of the probit estimates that led to this 
conclusion. (A probit refers to a unit of measurement of statistical 
probability based on deviations from the normal distribution of 
results. Probit estimates are often used within statistics to assess 
the risk of an event occurring in comparison to the likelihood that it 
will not occur.)
    Moreover, as we mentioned above, the regulations require all heat 
treatments that occur in a foreign country to take place in a facility 
certified by APHIS, and specify that certification is, in part, 
predicated upon a facility's having equipment able to meet treatment 
schedule parameters. This aspect of the certification process would 
include evaluating the suitability of any large-scale kilns at the 
facility for conducting the requisite heat treatment.
    The same commenter pointed out that the conclusion of Myers et al. 
was based on probit estimates and mathematical regression, rather than 
on the actual results of a full range of experiments. The commenter 
pointed out that Myers et al. did not repeatedly treat firewood at 60 
[deg]C for 60 minutes in order to establish the efficacy of such a 
treatment and questioned the reliability of probit estimates.
    In evaluating heat treatment schedules, probit estimates are 
intended to provide, not the minimum temperature and time duration that 
may achieve 100 percent mortality of a quarantine pest, but the minimum 
temperature and time duration that will prove efficacious in doing so 
with a high degree of statistical reliability. In other words, 
treatment schedules established through probit estimates are, by 
design, more conservative, both in temperature and duration, than 
schedules established through simple reduplication of a particular 
experiment in order to achieve a minimal efficacious treatment 
schedule.
    The commenter stated that, based on their experiments, Goebel et 
al. determined that heat treatment at 56 [deg]C for a duration of 82 
minutes was not an effective treatment schedule for EAB. The commenter 
asserted that this determination called into question the efficacy of 
heat treatment at 60 [deg]C for a duration of 60 minutes for EAB.

[[Page 12441]]

    The efficacy of heat treatment as a mitigation for a particular 
pest is dependent not only on the duration of the treatment, but also 
on the temperature it achieves in the treated article. Accordingly, 
Goebel et al.'s determination does not necessarily contradict the 
determination of Myers et al. Moreover, the commenter provided no 
scientific basis for considering the determinations contradictory.
    The same commenter stated that heat treatment at 60 [deg]C for a 
duration of 60 minutes would not be effective in killing certain types 
of phytopathogenic fungi.
    Phytopathogenic fungi were determined to be likely to follow the 
pathway on wooden handicrafts from China only if they were introduced 
by an arthropod vector. Arthropods that could serve as such vectors 
were considered in the pest risk assessment.
    Finally, the commenter stated that heat treatment consistent with 
ISPM 15 would not be efficacious in treating wooden handicrafts from 
China for all quarantine pests likely to follow the pathway on the 
handicrafts.
    We agree with the commenter. That is why we proposed to require a 
more stringent treatment.
    As we mentioned in the supplemental proposal, we published a final 
rule in the Federal Register on January 26, 2010 (75 FR 4228-4253, 
Docket No. APHIS-2008-0022), that was effective on February 25, 2010, 
and that, among other things, removed all treatment schedules found in 
7 CFR chapter III, including those in Sec.  319.40-7(c) and (d). It 
replaced all such schedules with a reference to 7 CFR part 305, which 
contains our regulations governing phytosanitary treatments. Last, it 
amended 7 CFR part 305 itself to state that all approved treatment 
schedules for regulated articles are found not in the regulations but 
in the PPQ Treatment Manual, and to establish a process for adding new 
treatment schedules for regulated articles to the Treatment Manual.
    In accordance with this process, we are modifying proposed Sec.  
319.40-5(o)(1) to state that wooden handicrafts from China must be 
treated as specified in the PPQ Treatment Manual in accordance with 7 
CFR part 305. We have also added the relevant treatment schedules for 
the handicrafts to the Treatment Manual; the schedules for heat 
treatment and heat treatment with moisture reduction specify that the 
treatment must raise the core temperature of the handicrafts to 60 
[deg]C for a duration of 60 minutes.

Comments Regarding Treatment With Methyl Bromide

    In proposed Sec.  319.40-5(o)(1)(ii), we stated that wooden 
handicrafts that are less than 6 inches in diameter may be treated with 
methyl bromide fumigation in accordance with 7 CFR part 305, instead of 
with heat treatment or heat treatment with moisture reduction.
    Several commenters stated that methyl bromide is known to deplete 
the stratospheric ozone layer, and that authorizing its use for 
treating Chinese wooden handicrafts violates the Montreal Protocol, in 
which the United States agreed to gradually reduce and ultimately 
eliminate use of methyl bromide. Another commenter stated that, while 
the number of applications of methyl bromide that would initially occur 
under the provisions of the proposed rule would likely be minimal, as 
the U.S. market for Chinese wooden handicrafts became more established 
and trade in those commodities increased, the number of applications 
would also increase. The same commenter stated that such an increase in 
trade with China could lead other countries to request that APHIS 
authorize the use of methyl bromide for similar regulated articles. All 
these commenters asked APHIS not to authorize the use of methyl bromide 
for wooden handicrafts from China, and to pursue alternate treatment 
options.
    The United States Government encourages methods that do not use 
methyl bromide to meet phytosanitary standards where alternatives are 
deemed to be technically and economically feasible. As stated in the 
proposed rule, APHIS would allow fumigation only for a certain type of 
wooden handicrafts from China, those less than 6 inches in diameter. 
All other handicrafts would have to be treated with heat treatment or 
heat treatment with moisture reduction. In addition, in accordance with 
Montreal Protocol Decision XI/13 (paragraph 7), APHIS is committed to 
promoting and employing gas recapture technology and other methods 
whenever possible to minimize harm to the environment caused by methyl 
bromide emissions.
    However, paragraph 5 of Article 2H of the Montreal Protocol does 
allow for quarantine and preshipment uses of methyl bromide, and does 
not specify a maximum number of such applications. Therefore, the 
provisions of this rule are not in conflict with the protocol.
    Finally, in accordance with the overarching objectives of the 
protocol, APHIS is currently examining the efficacy of other treatment 
options for Chinese wooden handicrafts. If we determine that treatments 
exist that are equally efficacious and are available within China, we 
will amend the Treatment Manual.
    One commenter expressed concerns about the human health impacts 
associated with the use of methyl bromide. The commenter stated that 
methyl bromide is known to be a carcinogen, skin and lung irritant, and 
neurotoxin if persons are exposed to it for prolonged periods of time. 
In a similar manner, another commenter suggested that we modify the 
proposed rule so that methyl bromide fumigation may only take place in 
an approved facility that adheres to stringent human health standards.
    APHIS' statutory authority extends only to establishing regulations 
to mitigate the plant pest risk associated with the importation of 
plants and plant products into the United States. Accordingly, it is 
the responsibility of the Chinese government to establish and enforce 
human health standards regarding the safe use of methyl bromide.
    Accordingly, based on our evaluation of the issue, we have decided 
to approve methyl bromide fumigation as a treatment for wooden 
handicrafts from China that are less than 6 inches in diameter, and 
have added this treatment to the Treatment Manual. However, because, as 
we mentioned above, we are currently examining the efficacy of other 
treatment options for Chinese wooden handicrafts, Sec.  319.40-5(o)(1), 
as finalized, does not make explicit reference to any one treatment 
option for the handicrafts. Such a modification will allow us to use 
the approach established by the January 26, 2010, final rule to add any 
new treatment schedules that we determine to be efficacious for Chinese 
wooden handicrafts to the Treatment Manual through publishing notices 
in the Federal Register, rather than through rules.

Comments Regarding Phytosanitary Certificates

    In proposed Sec.  319.40-5(o)(2), we stated that all consignments 
of wooden handicrafts would have to be accompanied by a phytosanitary 
certificate issued by the NPPO of China, and that the certificate would 
have to contain an additional declaration stating that the handicrafts 
were treated in accordance with Sec.  319.40-5 and inspected and found 
free from quarantine pests.
    Two commenters stated that the certificate would duplicate existing 
documentation required under the

[[Page 12442]]

regulations, and therefore should not be required.
    In response to these comments, we reexamined the proposed provision 
in light of existing regulations within the subpart. In Sec.  319.40-
2(a), we require a specific permit to be issued in accordance with 
Sec.  319.40-4 prior to the importation of a regulated article, unless 
the article is imported for propagation or human consumption, or is 
authorized importation under a general permit. Section 319.40-4 sets 
forth the procedure for applying for a specific permit. As part of this 
procedure, we require that each application include a description of 
any treatment to be performed prior to importation, including the 
location where the treatment will be performed, as well as the name and 
address of the importer of record.
    Similarly, in Sec.  319.40-2(b), we require an importer document or 
certificate to accompany all regulated articles, unless the article is 
imported for propagation or human consumption, or is authorized 
importation under a general permit. This importer document or 
certificate must state the treatment performed on the article prior to 
arrival at the point of first arrival.
    Wooden handicrafts from China are not imported for propagation or 
human consumption, and are not authorized importation under a general 
permit. Hence, each importation of wooden handicrafts from China must 
be authorized under a specific permit and accompanied by an importer 
document or certificate.
    Finally, Sec.  319.40-7 sets forth treatment requirements for 
regulated articles. Paragraph (a) of that section provides that, in 
response to inaccuracies on a document accompanying a regulated 
article, APHIS may determine not to accept any further certificates for 
the importation of regulated articles from that country, or may not 
allow the importation of any or all regulated articles from the country 
until corrective action acceptable to APHIS establishes that 
certificates issued in the country are accurate.
    Collectively, these requirements provide APHIS with information 
regarding the treatment applied to wooden handicrafts from China, a 
responsible party in the event that any imported handicrafts are 
determined to be infested with quarantine pests, and sufficiently 
stringent remedial measures to deter parties from providing inaccurate 
information on documents associated with the importation. As a result, 
we do not consider a phytosanitary certificate necessary, and are not 
including that requirement in this final rule.
    Three commenters stated that China has repeatedly authorized the 
export of contaminated or infested commodities in recent years. One of 
these commenters stated that Chinese officials are not concerned with 
the veracity of information on documents pertaining to the importation 
of these commodities. All the commenters stated that APHIS should not 
allow the NPPO of China to issue phytosanitary certificates, but should 
instead station personnel in China to monitor all treatments of wooden 
handicrafts and inspect all consignments destined for export to the 
United States.
    As we stated above, we consider the regulations to provide 
sufficient remedial measures to deter parties from providing inaccurate 
information on any document pertaining to the importation of wooden 
handicrafts from China. Moreover, we note that, under Sec.  319.40-9, 
all regulated articles must be inspected at the port of first arrival. 
If a regulated article shows any signs of pest infestation, the 
inspector may require treatment, if an approved treatment exists, or 
refuse entry of the consignment.

Comment Regarding Identification Tags

    In proposed Sec.  319.40-5(o)(3), we stated that all individual 
packages of wooden handicrafts would have be labeled with a merchandise 
tag containing the identity of the product manufacturer. We further 
stated that the tag would have to be applied to each package in China 
prior to exportation and remain attached to the package until it 
reaches the location at which the wooden handicraft would be sold in 
the United States.
    Two commenters stated that they manufacture wooden handicrafts that 
are packaged in a manner that prevents an identification tag from being 
applied to the package. One of these commenters requested that APHIS 
provide guidance regarding how manufacturers could apply the tag to 
packaging in a manner that would not deter consumers from purchasing 
their product.
    The tag must be applied to each shipping package containing wooden 
handicrafts, rather than to the packaging for any particular 
handicraft. For example, if a wooden train containing partially 
processed parts were sealed in a blister package in China, and a box 
containing several dozen of these trains were exported to the United 
States for sale at a toy store, the identification tag would have to be 
applied to the box that is shipped to the store, rather than to the 
individual blister packages. We have modified proposed Sec.  319.40-
5(o)(3) to clarify that it refers to shipping packages, rather than 
packaging.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This final rule has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget.
    We have prepared an economic analysis for this rule. The economic 
analysis provides a cost-benefit analysis, as required by Executive 
Orders 12866 and 13563, which direct agencies to assess all costs and 
benefits of available regulatory alternatives, and if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility. The economic analysis 
also examines the potential effects of this rule on small entities, as 
required by the Regulatory Flexibility Act. The economic analysis is 
summarized below. Copies of the full analysis are available by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT or 
on the Regulations.gov Web site (see footnote 1 at the beginning of 
this document for a link to Regulations.gov).
    This rule will allow for the resumption of imports of wooden 
handicrafts from China, provided certain conditions are met. In 2005, 
APHIS suspended the importation of certain wooden handicrafts until we 
could more fully analyze the pest risks associated with those articles. 
We have determined that the heat, heat with moisture reduction, and 
methyl bromide fumigation treatment options prescribed in this rule 
will sufficiently mitigate these pest risks.
    Protection of U.S. forests against the introduction and spread of 
invasive pests is vital to the economic well-being of the forestry 
industries as well as to maintaining the forests' environmental and 
aesthetic benefits for the general public. The hundreds of millions of 
dollars that have been spent to control the spread of EAB and the Asian 
longhorned beetle exemplify the enormous cost to the United States when 
invasive pests become

[[Page 12443]]

established. This rule will establish safeguards against further 
incursions of wood-boring pests such as these via the importation of 
infested handicrafts from China, while allowing the importation of such 
handicrafts to resume.
    U.S. entities are expected to be minimally affected by this rule. 
Wooden handicrafts comprised a very small fraction of wood products 
imported from China prior to April 2005, and similar levels of 
importation are expected following promulgation of this rule. 
Nonetheless, U.S. consumers of wooden handicrafts will benefit from 
reestablished access to these products from China. Treatment costs, 
representing on average less than 2 percent of the value of the 
products shipped, will be borne by firms in China, and any fraction of 
those costs that may be passed on to U.S. buyers will be negligible. In 
addition, benefits are expected to exceed costs.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of wooden 
handicrafts from China under the conditions specified in the rule will 
not have a significant impact on the quality of the human environment. 
Based on the finding of no significant impact, the Administrator of the 
Animal and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\6\ Copies of the 
environmental assessment and finding of no significant impact are also 
available for public inspection at USDA, room 1141, South Building, 
14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. 
and 4:30 p.m., Monday through Friday, except holidays. Persons wishing 
to inspect copies are requested to call ahead on (202) 690-2817 to 
facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
---------------------------------------------------------------------------

    \6\ Go to http://www.regulations.gov/#!docketDetail;D=APHIS-
2007-0117. The environmental assessment and finding of no 
significant impact will appear in the resulting list of documents.
---------------------------------------------------------------------------

Paperwork Reduction Act

    This final rule does not include an information collection 
requirement that had been included in the proposed rule. Specifically, 
for the reasons described earlier in this document, this final rule 
does not include a requirement for the completion of phytosanitary 
certificates.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0357.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.

0
2. The subpart heading for ``Subpart-Logs, Lumber, and Other 
Unmanufactured Wood Articles'' is amended by removing the word 
``Unmanufactured''.

0
3. Section 319.40-1 is amended by revising the definition of regulated 
article and adding, in alphabetical order, a definition for wooden 
handicraft to read as follows:

Sec.  319.40-1  Definitions.

* * * * *
    Regulated article. The following articles, if they are unprocessed, 
have received only primary processing, or contain parts that are either 
unprocessed or have received only primary processing and are not 
feasibly separable from the other parts of the article: Logs; lumber; 
any whole tree; any cut tree or any portion of a tree, not solely 
consisting of leaves, flowers, fruits, buds, or seeds; bark; cork; 
laths; hog fuel; sawdust; painted raw wood products; excelsior (wood 
wool); wood chips; wood mulch; wood shavings; pickets; stakes; 
shingles; solid wood packing materials; humus; compost; litter; and 
wooden handicrafts.
* * * * *
    Wooden handicraft. A commodity class of articles derived or made 
from natural components of wood, twigs, and vines, and including bamboo 
poles and garden stakes. Handicrafts include the following products 
where wood is present: Carvings, baskets, boxes, bird houses, garden 
and lawn/patio furniture (rustic), potpourri, artificial trees 
(typically artificial ficus trees), trellis towers, garden fencing and 
edging, and other items composed of wood.

0
4. Section 319.40-5 is amended by adding a new paragraph (o) and 
revising the OMB citation at the end of the section to read as follows:

Sec.  319.40-5  Importation and entry requirements for specified 
articles.

* * * * *
    (o) Wooden handicrafts from China. Wooden handicrafts more than 1 
centimeter in diameter may be imported into the United States from 
China only in accordance with this paragraph and all other applicable 
provisions of this title. Wooden handicrafts less than 1 centimeter in 
diameter are exempt from the requirements of this paragraph, but

[[Page 12444]]

are still subject to all other applicable provisions of this chapter.
    (1) Treatment. Wooden handicrafts must be treated in accordance 
with part 305 of this chapter.
    (2) Identification tag. All packages in which wooden handicrafts 
are shipped must be labeled with a merchandise tag containing the 
identity of the product manufacturer. The identification tag must be 
applied to each shipping package in China prior to exportation and 
remain attached to the shipping package until it reaches the location 
at which the wooden handicraft will be sold in the United States.

(Approved by the Office of Management and Budget under control 
numbers 0579-0049, 0579-0257, 0579-0319, and 0579-0367)

    Done in Washington, DC, this 27th day of February 2012.
Edward Avalos,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2012-4962 Filed 2-29-12; 8:45 am]
BILLING CODE 3410-34-P
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